National Security Law Experts: Killing of Bin Laden Was Legal

The targeting of al-Qaida leader Osama bin Laden was consistent with the U.N. charter and U.S. law and not an illegal assassination as some critics have argued, two national security law experts affirmed.

Professor John Norton Moore and Robert F. Turner, co-founders of the University of Virginia's Center for National Security Law, said bin Laden was a lawful target even before Sept. 11 because of his role in an ongoing series of armed attacks against American targets.

"Article 51 of the U.N. Charter reaffirms the pre-existing right of states to use lethal force in self-defense," said Moore, who serves as director of the center and is Walter L. Brown Professor of Law at the University of Virginia.

The article states "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."

The day following the Sept. 11 attacks, the U.N. Security Council unanimously passed Resolution 1368, which among other things recognized "the inherent right of individual or collective self-defence" in the context of those attacks.

Sixteen days later, the Security Council unanimously approved Resolution 1373, which reaffirmed the right of victims of terrorist attacks to use force in self-defense and declared the attacks "a threat to international peace and security." The resolution reaffirmed "the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts."

"It's true that Executive Order 12,333 prohibits anyone employed by the U.S. government from engaging in 'assassination,' but that provision clearly does not constrain otherwise lawful killings during armed conflict," said Turner, the associate director of the center.

By definition, assassination is a form of murder, Turner said.

"The targeting of Osama bin Laden is no more an assassination than was the intentional downing in 1943 of a transport aircraft carrying Japanese Admiral Isoroku Yamamoto, the mastermind of the attack on Pearl Harbor. Killing the enemy during armed conflict is not murder."

Moore said that calling the killing of bin Laden an "extrajudicial execution," as some critics have labeled it, ignores the reality of armed conflict.

"Soldiers routinely use lethal force against their enemies without the involvement of judges or juries," Moore said. "Press accounts report bin Laden was shot during an extensive firefight between his forces and U.S. Navy SEALs. Based upon the available evidence, the targeting was perfectly lawful under both U.S. and international law."

Moore and Turner are the editors of the casebook "National Security Law." They chaired the American Bar Association's Standing Committee on Law and National Security throughout most of the 1980s and early 1990s, and have testified before Congress dozens of times on national security matters.

From 1991-93, during the Gulf War and its aftermath, Moore was the principal legal adviser to the Ambassador of Kuwait to the United States and to the Kuwait delegation to the U.N. Iraq-Kuwait Boundary Demarcation Commission. From 1985 to 1991, Moore chaired the board of directors of the U.S. Institute of Peace.

Turner previously served as a member of the Senior Executive Service, first in the Pentagon as special assistant to the under secretary of defense for policy, then in the White House as counsel to the President's Intelligence Oversight Board, and at the State Department as acting assistant secretary for legislative affairs. In 1986-87, he was the first president of the U.S. Institute of Peace. Both are members of the Council on Foreign Relations, the Committee on the Present Danger, and other professional organizations.

Moore and Turner's comments are personal and are not the views of the Center for National Security Law or any other organization or entity with which the scholars are or have been associated.